Legally best practices in section 504 plans: a sound understanding of what the law actually requires can save you from awarding too many 'consolation prizes'

School Administrator, Sept, 2008 by Rachel A. Holler, Perry A. Zirkel

One of us (Zirkel), in a 2005 book, Section 504: Student Issues, Legal Requirements, and Practical Recommendations, observed that the general population is "at least at the state level, and, preferably, where data are available, at the national level." So give yourself credit if you chose either answer E or F.

If you missed both questions, you are not alone in your responses. Only 3 percent of respondents in our national survey selected both correct answers. Your responses might suggest whether your school district needs to take a closer look at Section 504 practices. Answering incorrectly could indicate you are writing too many Section 504 plans, using them as consolation prizes to appease parents rather than accommodating the students who are legitimately eligible under this judicially tightened eligibility definition.

On the other hand, if you are limiting Section 504 plans to the major life activity of learning, as the vast majority of the respondents answered, you are likely legally vulnerable for failing to identify students with physical impairments affecting major life activities, such as breathing and eating. Again, a careful individualized eligibility determination in accordance with current legal standards, rather than an automatic knee-jerk reaction, is the correct approach.

One reason for careful re-examination, even for students with health conditions such as food allergies, diabetes and asthma, is that the courts also have taken a demanding global and central view of major life activities. Thus, the plaintiff: in the Supreme Court's Toyota Motors decision in 2002, who had carpal tunnel syndrome, lost her case because the limitation on the major life activity of manual tasks--not subsets, such as fine motor work with her hands--did not qualify as substantial.

In light of these relatively recent and consistently strict judicial interpretations, the following practices warrant careful reexamination:

* using Section 504 as an all-purpose mechanism for teachers who refuse to differentiate instruction;

* providing Section 504 plans upon demand from parents who want a competitive advantage or who want to avoid a label of special education;

* using Section 504 as an integral part of procedures--such as response to intervention--that formalize less restrictive alternatives prior to IDEA eligibility; and

* almost automatically providing a Section 504 plan to students who would benefit from a safety net either for administration of medication or upon exiting from an IEP.

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Section 504 is an unfunded mandate. As a result, overdoing Section 504 plans represents the use of local fiscal resources on unnecessary legalization instead of on improving local responsiveness to student needs. Why not reallocate such resources, beyond the strict boundaries of Section 504, to parent partnerships or professional development to assist staff in making appropriate accommodations that benefit all students?

The House of Representatives recently passed a bill that would reverse the recent judicial trend that has narrowed the definition of disability under both the ADA and Section 504. The bill would require that the determination of substantial limitation be without mitigating measures (except "ordinary eyeglasses or contact lenses"), thereby largely changing the answer to the first question above.